New York State Court of Claims

New York State Court of Claims

FOMINAS v. THE STATE OF NEW YORK, #2001-013-509, Claim No. 97030


Prison inmate is awarded $750.00 for pain he experienced when prison authorities delayed, without reason, to provide him with needed special footwear. All other causes of action are dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: LESLIE STROTH, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 27, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Wende Correctional Facility (Wende) filed this timely claim alleging negligence by the State in failing to provide him with special boots needed for a leg severely injured before his incarceration; failing to provide him with proper dental care; for negligently removing his teeth; negligently constructing a dental plate which fits improperly, causing him pain and discomfort, and not replacing it; providing him with improper medical care and refusing to provide him with necessary medications; and refusing to move him to a cell with a window and away from inmates that smoke, since it aggravates his breathing problems. He also alleges that he has been the subject of numerous retaliatory searches of his cell as a result of his filing an Article 78 proceeding relating, in part, to the allegations in this claim.

The claim before me consists of a myriad of rambling and disjointed paragraphs alleging perceived multiple wrongs committed against Claimant, each of which was or should have been the basis of a separate grievance. It is not clear from the record before me that he followed the appropriate administrative processes in order to preserve these grievances for review by this Court. In fact, many if not all would now be time barred, since the claim was filed with the Clerk of the Court on September 24, 1997. Consequently, I can only consider those matters raised in the claim which occurred within the ninety (90) days prior to that date.

The Court notes that Claimant has alleged various acts of negligence that he asserts violate his rights as guaranteed by the Eighth Amendment of the United States Constitution. Any part of his claim that alleges a violation of his rights under the United States Constitution is hereby dismissed, as the Court has no jurisdiction over any such claims (
Davis v State of New York, 124 AD2d 420; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656).
With regard to Claimant's failure to receive appropriate medical footwear to compensate for the approximate 1 ½" difference between his right and left legs, Claimant testified that he now has the corrective footwear and has been receiving them as directed over the past several years. In addition, it appears that the several grievances he filed relating to this issue were resolved in his favor, and the shoes (boots and sneakers) were eventually received by him. It strikes me that Claimant was dissatisfied with the length of time it took to receive these items and that he was compelled to take action to enforce the doctor's orders. The Defendant failed to provide any proof as to why there was a delay, and further established that Claimant was in pain during this time.

Claimant alleges that his cell was searched in retaliation for the numerous grievances he filed against the medical personnel and his medications unlawfully removed from his cell. While he offered no credible testimony in support of this part of the claim, the Court is convinced after reviewing the documentation attached to his claim that the removal of his medications stemmed from his desire to accumulate these medicines and self-medicate. The papers annexed to the claim clearly set out a pattern of abuse, in that he would make repeated demands for additional medication before the time when he should have used them if he were taking them as prescribed by the medical staff. Consequently, I find the search of his cell was permissible and the removal of the medications he had hoarded was not unlawful. I dismiss so much of his claim that alleges that these acts were negligent or unlawful.

With regard to the alleged dental malpractice/dental negligence, I must now grant the Defendant's motion to dismiss that part of the claim. In reviewing the papers attached to the claim, I note that while there are some dental records, they are of no benefit to the Court without expert testimony to establish that the dental procedures taken constituted malpractice, either in the removal of his teeth or the fitting of the dental plate. The Claimant has the burden of proving that the level of care he received falls below the standard of reasonable care for the provision of dental services in correctional facilities in this State (
see, Gordon v City of New York, 120 AD2d 562, 563, affd 70 NY2d 839). He has failed to provide any expert testimony as to what the standard of care is and that there was a deviation from that standard as it pertained to the treatment he received.
The same result pertains to his claim regarding the alleged failure to properly treat him for his complaints of itching. Further, there is ample proof in the papers appended to his claim to demonstrate that his complaints regarding this discomfort were attended to each time he appeared at sick call for this condition. Without expert testimony to establish what the standard of reasonable medical care for the treatment of this condition is and that the treatment he received was not consistent with this standard, I have no other alternative but to dismiss this part of the claim.

Finally, with respect to that portion of the claim seeking damages for exposure to second-hand smoke and the Defendant's failure to remove him from a cell with no window to one with a window and a cell mate that did not smoke, the Court now grants the State's motion to dismiss. While the symptoms he described and for which he has been treated over the past years are certainly uncomfortable and annoying, he has offered no expert testimony proving that he has suffered a serious health threat or that there will be long-term negative health effects to him. With regard to the facility's refusal to move him to a different room and to house him with a non-smoker, I would merely note that if he felt aggrieved by their refusal, his recourse was through other procedures and not through this Court.

I am concerned by one aspect of this case. Claimant has sought outside consultation with a doctor specializing in orthopedic medicine. He was never granted that referral and commenced an Article 78 proceeding to compel such referral and examination. At my direction, he provided me with a copy of the order of Supreme Court Justice Robert E. Whelan (Court Exhibit 1) dated June 25, 1999, which orders that there be an evaluation of the Claimant within sixty (60) days of that order.
Claimant stated that even with this order, he has not been seen by an outside orthopedist and the medical records produced at trial (Defendant's Exhibit A) indicate that Defendant has not complied with that order. Consequently, it is in violation of Judge Whelan's order and Claimant should have no trouble in returning to the court that issued the order to secure its enforcement, as well as other relief it may deem appropriate under the circumstances.
The Claimant is awarded the sum of $750.00 for his pain and suffering incurred during the time he failed to receive the orthopedic boots prescribed by Defendant's doctors.

All motions not heretofore ruled upon are hereby denied.


September 27, 2001
Rochester, New York

Judge of the Court of Claims